Case: 11-30142 Document: 00511660351 Page: 1 Date Filed: 11/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2011
No. 11-30142
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BILLY DEWAYNE MOORE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-56-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Billy Dewayne Moore was indicted for being a felon in possession of a .45
caliber pistol and .45 caliber ammunition. The Government filed a notice that
it would be seeking a sentencing enhancement under the Armed Career
Criminal Act base on Moore’s three prior Louisiana felony convictions. The
Government also filed a notice that it intended to present evidence pursuant to
Federal Rule of Evidence 404(b) consisting of testimony that Moore brandished
a similar weapon while engaged in an altercation with a man who was walking
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-30142
an infant in a stroller. Moore filed no opposition. The district court allowed the
introduction of the Rule 404(b) evidence. The jury convicted Moore. The district
court sentenced Moore to 235 months of imprisonment to be followed by 5 years
of supervised release.
Moore argues that the district court erred in allowing the Government to
present evidence of other crimes, wrongs, or bad acts pursuant to Federal Rule
of Evidence 404(b). “[W]here the defendant did not object to the evidence on the
basis presented on appeal, [this court] review[s] the district court’s evidentiary
ruling for plain error.” United States v. Williams, 620 F.3d 483, 488-89 (5th Cir.
2010), cert. denied, 131 S. Ct. 1534 (2011). We use a two-pronged test to
determine if the district court abused its discretion in admitting Rule 404(b)
testimony. United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc). We first determine whether “the extrinsic evidence is relevant to an issue
other than the defendant’s character.” Id. Next, we examine whether the
evidence possesses “probative value that is not substantially outweighed by its
undue prejudice.” Id. Given the stipulations in the case, the only issue for trial
was whether Moore knowingly possessed the firearms. Contrary to Moore’s
argument, the evidence in question was relevant to his knowledge and intent,
an issue other than his character, and satisfied the first prong of the Beechum
standard. See Beechum, 582 F.2d at 911.
Turning to the second prong of Beechum, the overall similarity of the
extrinsic evidence and the offense charged was great. See Beechum, 582 F.2d at
915. In both instances, possession of the pistol was the central fact. The
extrinsic act had occurred only days prior to the charged offense, such that the
events were temporally proximate. Id. The prejudice alleged by Moore is that
the extrinsic evidence showed him accosting a man with a baby. It cannot be
said that such a fact clearly and plainly established that the significant
probative value of the Rule 404(b) evidence in this case was outweighed by its
prejudicial effect. See Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423,
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No. 11-30142
1429 (2009). Moore has not shown that it was plain error to admit the evidence.
Moore argues under United State v. Deharce-Estrada, 526 F.2d 637 (5th
Cir. 1976), that the district court’s management of the trial deprived him of due
process. In this case, unlike Deharce-Estrada, defense counsel did not object to
any of the actions of the district court, and Moore concedes that review is for
plain error. Moore does not argue that he was unable to present adequately any
portion of his defense due to the actions of the district court. The record
discloses nothing about the management of this case that approaches the action
of the district court in Deharce-Estrada. Moore has not shown that the district
court acted improperly much less plainly or clearly so in conducting his trial.
AFFIRMED.
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